"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Wednesday, May 12, 2010

Some Suggested Questions for General Kagan

My Marquette University Law School colleague Peter Rofes has suggested, with tongue placed strategically in cheek, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.

You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?

Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.

Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?

If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?

May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

In other words, is it the role of the Court to "improve" or "balance" political discourse?

4 comments:

Anonymous
said...

And some suggested responses.

1. Would, as you ask, a law restricting same sex marriage to unions between a man and a woman lack a rational basis? Well, yes, a law restricting same sex marriage to unions between a man and a woman would indeed be irrational.

2. Can Congress really impose a tax on people who fail to buy what Congress wants? I could duck and say that the question might come before the Court, and therefore I won't answer it. But I won't do that. Under the Constitution, Congress is a body with limited and enumerated powers. One of those powers is the power granted in Article I, section 8, "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States. . . " If Congress studies the issue and concludes that it shall lay and collect a particular tax and doing so will promote the general welfare, far be it from me, as a Justice of the United States Supreme Court, to say it can't, unless there is some specific other provision of the Constitution that the tax would violate. Congress has levied taxes on people who buy things that Congress wants people NOT to buy, such as marijuana and tobacco. And the Court struck down the marijuana tax, or "marihuana tax," as it was called, not because Congress didn't have the power under the Commerce Clause or Article I, section 8 to tax it, but because the manner in which the tax was imposed forced people to incriminate themselves, in violation of the Fifth Amendment. As far as those matters that are within Congress's power under the Commerce Clause to regulate and its power under Article I, section 8, to tax, Chief Justice Marshall's remark in 1824, in Gibbons v. Ogden, remains true: the wisdom and discretion of Congress, its identity with the people, and the influence its constituents possess at elections, must often be the sole restraints on Congress's power to act. To attempt to divine a "structural" limit on Congress's power to act, not enumerated in any specific provision of the Constitution, would be judicial activism at its worst. I'm sure you are not in favor of judicial activism, Senator.

"Ms. Kagen, you and ah both know Republicans got no problem with activism so long as we agree with the dee-cission.

And y'all know we Republicans ain't always fer state's rights. Take mary-jo-wanna fer instance. We got no problem saying states should get to do ever-thing then turnin' around and tellin' them they can't legalize no hippy weed."

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.